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A democracy must ensure that individuals have certain rights and that the government will always recognize these rights. Therefore it is often a practice in most democratic countries to list the rights of the citizens in the constitution itself. Such a list of rights mentioned and protected by the constitution is called the ‘bill of rights’. A bill of rights prohibits government from thus acting against the rights of the individuals and ensures a remedy in case there is violation of these rights.

Fundamental Rights in the Indian Constitution:

The Constitution listed the rights that would be specially protected and called them ‘Fundamental Rights’.

The word Fundamental suggests that these rights are so important that the Constitution has separately listed them and made special provisions for their protection.

The Fundamental Rights are so important that the Constitution itself ensures that they are not violated by the Government.

While ordinary legal rights are protected and enforced by ordinary law, fundamental rights are protected and guaranteed by the constitution of the country.

Ordinary rights may be changed by the legislature by ordinary process of law making, but a fundamental right may only be changed by amending the Constitution itself.

Judiciary has the powers and responsibility to protect the fundamental rights from violations by actions of the government. Executive as well as legislative actions can be declared illegal by the judiciary if these violate the fundamental rights or restrict them in an unreasonable manner.

Fundamental rights are not absolute or unlimited rights. Government can put reasonable restrictions on the exercise of our fundamental rights.

Constitution of India Part III: Fundamental Rights

Right to Equality

Equality before law

Equal protection of laws

Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth

Right to move the courts to issue directions/orders/writs for enforcement of rights.

Right to Equality:

Article 16(4): Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favor of any backward class of citizens which in the opinion of the State, is not adequately represented in the services under the State.

Article 21: Protection of life and personal liberty – No person shall be deprived of his life or personal liberty except according to procedure established by law.

Right to Freedom:

Equality and freedom or liberty, are the two rights that are most essential to a democracy.

Right to life and personal liberty:

The foremost right among rights to freedom is the right to life and personal liberty. No citizen can be denied his or her life except by procedure as laid down under the law.

Similarly no one can be denied his/her personal liberty. That means no one can be arrested without being told the grounds for such an arrest.

The Supreme Court has ruled that this right also includes right to live with human dignity, free from exploitation.

The court has held that right to shelter and livelihood is also included in the right to life because no person can live without the means of living, that is, the means of livelihood.

Preventive Detention: If the government feels that a person can be a threat to law and order or to the peace and security of the nation, it can detain or arrest that person. This is known as Preventive Detention. This can be extended only for three months. After 3 months such a case is brought before and advisory board for review.

The other rights under the right to freedom are not absolute. Each of these is subject to restrictions imposed by the government. Ex: Right to freedom of speech and expression, freedom to assemble.

Rights of accused: Our constitution ensures that persons accused of various offences would also get sufficient protection. To ensure a fair trial in courts, the Constitution has provided three rights:

No person would be punished for the same offence more than once,

No law shall declare any action as illegal from a backdate and

No person shall be asked to give evidence against himself or herself

Right against Exploitation: Begar or forced labor as well as trafficking of human beings are prohibited under the Constitution. The constitution also forbids employment of children below the age of 14 years in dangerous jobs like factories and mines.

Right to Freedom of Religion: According to our Constitution, everyone enjoys the right to follow the religion of his or her choice. This freedom is considered as a hallmark of democracy.

Freedom of faith and worship;

In India, everyone is free to choose a religion and practice that religion

Freedom of religion also includes the freedom of conscience.

Freedom of religion is subject to certain limitations. The government can impose restrictions on the practice of freedom of religion in order to protect public order, morality and health.

The government can interfere in religious matters for rooting out certain social evils.

The Constitution does not allow forcible conversions. It only gives us the right to spread information about our religion and thus attracts others to it.

Cultural and Educational Rights:

Our constitution believes that diversity is our strength. Therefore, one of the fundamental rights is the right of the minorities to maintain their culture. This minority status is not dependent only upon religion. Linguistic and cultural minorities are also included in this provision

Minorities are groups that have common language or religion and in a particular part of the country or in the country as a whole, they are outnumbered by some other social section. Such communities have a culture, language and a script of their own, and have the right to conserve and develop these.

All minorities, religious or linguistic, can set up their own educational institutions. By doing so, they can preserve their own culture. The government will not discriminate on any basis while granting aid to educational institutions.

Right to Constitutional Remedies: This is a means through which fundamental rights could be realized in practice and defended against any attack on these rights. Dr. Ambedkar considered the right to constitutional remedies as ‘heart and soul of the constitution’. It is so because this right gives a citizen the right to approach a High Court or the Supreme Court to get any of the fundamental rights restored in case of their violation.

The Courts can issue various special orders known as writs for the enforcement of rights.

Habeas corpus: A writ of habeas corpus means that the court orders that the arrested person should be presented before it. It can also order to set free an arrested person if the manner or grounds of arrest are not lawful or satisfactory.

Mandamus: This writ is issued when the court finds that a particular office holder is not doing legal duty and thereby is infringing on the right of an individual.

Prohibition: This writ is issued by a higher court (High Court or Supreme Court) when a lower court has considered a case going beyond its jurisdiction.

Quo Warranto: If the court finds that a person is holding office but is not entitled to hold that office, it issues the writ of quo warranto and restricts that person from acting as an office holder.

Certiorari: Under this writ, the court orders a lower court or another authority to transfer a matter pending before it to the higher authority or court.

National Human Rights Commission (NHRC)

The real test of the rights given by any constitution is in their actual implementation. The poor, illiterate and the deprived sections of the society must be able to exercise their rights. Independent organisations like the People’s Union for Civil Liberties (PUCL) or People’s Union for Democratic Rights (PUDR) have been working as watchdogs against the violations of rights. In this background, the government has established in 1993 an institution, the National Human Rights Commission.

The National Human Rights Commission (NHRC) is composed of a former chief justice of the Supreme Court of India, a former judge of the Supreme Court, a former chief justice of a High Court and two other members who have knowledge and practical experience in matters relating to human rights.

The Commission’s functions include inquiry at its own initiative or on a petition presented to it by a victim into complaint of violation of human rights; visit to jails to study the condition of the inmates; undertaking and promoting research in the field of human rights, etc.

The Commission does not have the power of prosecution. It can merely make recommendations to the government or recommend to the courts to initiate proceedings based on the inquiry that it conducts.

DIRECTIVE PRINCIPLES OF STATE POLICY

Some guidelines were incorporated in the Constitution but they were not made legally enforceable: this means that if a government did not implement a particular guideline, we cannot go to the court asking the court to instruct the government to implement

that policy. Thus, these guidelines are ‘non-justiciable’ i.e., parts of the Constitution that cannot be enforced by the judiciary. Those who framed our Constitution thought that the moral force behind these guidelines would ensure that the government would take them seriously. Besides, they expected that the people would also hold the governments responsible for implementing these directives. So, a separate list of policy guidelines is included in the Constitution. The list of these guidelines is called the Directive Principles of State Policy.

What do the Directive Principles contain?

The chapter on Directive Principles lists mainly three things:

the goals and objectives that we as a society should adopt;

certain rights that individuals should enjoy apart from the Fundamental Rights; and

certain policies that the government should adopt.

Goals of Directive Principles:

Welfare of the people; Social, economic and political justice;

Raising the standard of living; equitable distribution of resources;

Promotion of international peace

Policies:

Uniform civil code;

Prohibition of consumption of alcoholic liquor;

Promotion of cottage industries;

Prevention of slaughter of useful cattle;

Promotion of village panchayats

Non-Justiciable rights:

Adequate livelihood

Equal pay for equal work for men and women

Right against economic exploitation

Right to work

Early childhood care and education to children below the age of six years.

RELATIONSHIP BETWEEN FUNDAMENTAL RIGHTS AND DIRECTIVE PRINCIPLES

It is possible to see both Fundamental Rights and Directive Principles as complementary to each other. Fundamental Rights restrain the government from doing certain things while Directive Principles exhort the government to do certain things. Fundamental Rights mainly protect the rights of individuals while directive principles ensure the well-being of the entire society

However, at times, when government intends to implement Directive Principles of State Policy, it can come in conflict with the Fundamental Rights of the citizens.

The government was saying that Parliament can amend any part of the Constitution. The court was saying that Parliament cannot make an amendment that violated Fundamental Rights. This controversy was settled by an important decision of the Supreme Court in Kesavananda Bharati case. In this case, the court said that there are certain basic features of the Constitution and these cannot be changed by Parliament.